Wis. SC to release filings in ‘John Doe’ cases this week

By Jessica M. Karmasek | May 12, 2015

MADISON, Wis. (Legal Newsline) - The Wisconsin Supreme Court is set to release hundreds of pages of court filings Wednesday in three cases it is reviewing, deciding whether to allow a secret, or “John Doe,” investigation into Gov. Scott Walker and his 2012 recall campaign to continue.


Supreme Court Clerk Diane M. Fremgen sent a letter to counsel for the parties involved in the pending cases Monday afternoon.


Fremgen said the documents will be placed in a public file and “made available for public inspection” starting at 11 a.m. Wednesday.


“The court has followed a detailed process for providing public access to documents that have been filed in the Supreme Court and the Court of Appeals in the John Doe-related cases while still maintaining the confidentiality of information covered by the secrecy orders issued by the John Doe judge,” court spokesman Tom Sheehan wrote in an email.


Sheehan said for each brief and each of the other documents that have been filed under seal, the court has directed the parties to file either (1) a statement that the original of the brief or other document may be released into the public court file or (2) a redacted version of the brief or other document that may be placed into the public court file, while the original remains sealed.

The court also established an objection process, by which the parties could object to “excessive” or “insufficient” redactions in another party’s documents, Sheehan noted.


That process has now been largely completed, he said.


Sheehan explained that either the original of a brief or other document or the final redacted version, as designated by the filing party, will be placed into the public court file.


Documents other than those that have been designated for release will be available on CDs for $10 each, or paper copies can be obtained at a cost of $.40 per page, he added.


The release of documents comes after the Supreme Court in March declined to hear arguments in the consolidated cases, saying that it is “neither legally nor practically reasonable.”


“The prospect of oral argument creates severe tension between important and conflicting priorities,” the court stated in an order.


“On the one hand, the court is strongly adverse to the idea of closing the courtroom to the public; our long tradition is to render public decisions based on public arguments, both oral and written.


“On the other hand, we must uphold the John Doe secrecy orders, from which no party has appealed and which protect a vast amount of information from disclosure, including the John Doe docket and activity records, John Doe filings, process issued by the John Doe judge, and all other matters observed or heard in the John Doe proceeding.”


In September, the U.S. Court of Appeals for the Seventh Circuit reversed an injunction granted by U.S. District Judge Rudolph Randa that stopped Milwaukee District Attorney John Chisholm’s investigation into Walker, who is now eyeing a 2016 run for President.


The Seventh Circuit ruled that a lower court was wrong to stop the four-year criminal investigation, which alleges “illegal coordination” of campaign funding by Walker and 29 independent nonprofits.


Judge Frank Easterbrook, who authored the Seventh Circuit’s opinion, said the Anti-Injunction Act keeps federal courts from barring state court proceedings.


In October, those targeted by Chisholm’s investigation -- among them, the Wisconsin Club for Growth and its chief strategist and fundraiser, Eric O’Keefe -- asked the full Seventh Circuit to rehear the case.


The court denied the en banc rehearing petition. In January, the group filed a petition for writ of certiorari with the U.S. Supreme Court.


In December, in separate but related state litigation, the state Supreme Court agreed to take up petitions originally filed in the court last February and others.


Three lawsuits have been filed; two by unnamed parties challenging the investigation’s validity and another by prosecutors looking to reinstate subpoenas.


The petitioners argue they have done nothing illegal and have free-speech rights, while prosecutors contend the groups did not operate independently of Walker’s campaign.


The high court said it will decide the matter on briefs. A ruling is expected this summer.


From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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